Citation Nr: 0723839
Decision Date: 08/02/07 Archive Date: 08/15/07
DOCKET NO. 04-27 083 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for a back disorder.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from June 1976 to November
1980.
This is an appeal from an August 2002 rating decision by the
RO which determined that new and material evidence had not
been submitted to reopen a claim for service connection for
residuals of a back injury.
FINDINGS OF FACT
1. A claim for service connection for a back disorder was
denied in a Board of Veterans' Appeals (Board) decision in
May 1997.
2. The evidence received since the Board decision of May
1997 pertinent to the claim for service connection for a back
disorder is either cumulative or redundant, or does not bear
directly and substantially on the specific matter under
consideration, and is not so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSION OF LAW
1. The Board decision of May 1997, which denied a claim for
service connection for a back disorder, is final.
38 U.S.C.A. §§ 5108, 7104 (West 2002).
2. New and material evidence has not been received following
the Board decision of May 1997 and the claim for service
connection for low back disorder is not reopened.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
At the outset, the Board notes that this matter has been
sufficiently developed pursuant to the guidelines established
in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA).
In this regard, the record reflects that the veteran has been
advised of the evidence necessary to substantiate her claim.
First, prior to the initial adjudication of the claim on
appeal, the veteran was provided with an April 2002 letter
that outlined the evidence necessary to substantiate her
claim, including the type of evidence required to reopen her
previously denied claim, and the obligations of the
Department of Veterans Affairs (VA) and the veteran in
obtaining that evidence. Quartuccio v. Principi, 16 Vet.
App. 183 (2002); Kent v. Nicholson, 20 Vet. App. 1 (2006).
A similar letter was also provided to the veteran in May
2006. Id.
A March 2006 letter also advised the veteran of the bases for
assigning ratings and effective dates. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Although the neither the April 2002 nor May 2006 VCAA notice
letter specifically requested that appellant provide any
evidence in the appellant's possession that pertained to the
claim as addressed in Pelegrini v. Principi, 18 Vet. App. 112
(2004), as demonstrated from the foregoing communications
from the regional office (RO), the Board finds that appellant
was otherwise fully notified of the need to give to VA any
evidence pertaining to her claims. All the VA requires is
that the duty to notify under the VCAA is satisfied, and the
claimants are given the opportunity to submit information and
evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied.
See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v.
Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102
(harmless error).
The May 2006 VCAA notice letter was also followed by June
2006, August 2006, and April 2007 statements from the veteran
that she had no further evidence to submit in support of her
claim, and a readjudication of the claim in the February 2007
supplemental statement of the case.
The Board further notes that the veteran has been provided
with the applicable law and regulations, and there is no
indication that there are any outstanding pertinent documents
or records that have not been obtained, or that are not
adequately addressed in documents or records contained within
the claims folder.
Consequently, based on all of the foregoing, VA has met the
burden to show that any failure to notify in this case was
not prejudicial to the veteran. Sanders v. Nicholson, No.
06-7001 (Fed. Cir. May 16, 2007); Simmons v. Nicholson, No.
06-7002 (Fed. Cir. May 16, 2007). Therefore, the remand of
this claim for further notice and/or development under the
VCAA would be an unnecessary use of VA time and resources.
II. Whether New and Material Evidence has been Submitted to
Reopen the Claim for Service Connection for a Back Disorder
In order for a claimant to reopen a claim that has been
previously denied and is final, the claimant must present new
and material evidence. 38 U.S.C.A. § 5108. New and material
evidence means evidence not previously submitted to agency
decisionmakers that bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
The standard for new and material evidence was amended in
2001 (38 C.F.R. § 3.156(a) (2006)), but that amendment
applies only to claims to reopen received on or after
August 29, 2001. See 66 Fed. Reg. 45620 (Aug. 29, 2001).
Since this claim was received before that date (March 2001),
the law in effect when the claim was filed is applicable.
That is the standard discussed above.
To be material, evidence must be (a) relevant in that it
bears directly and substantially on the matter under
consideration, and (b) so significant, either by itself or
with other evidence, that it must be considered in order to
fairly decide the claim. See 38 C.F.R. § 3.156(a). In order
for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends, and the
claim cannot be reopened. See Smith v. West, 12 Vet. App.
312, 314 (1999).
Based on the grounds stated for the denial in the May 1997
Board decision, new and material evidence would consist of
medical evidence showing a link between a current back
disability and incurrence or aggravation during military
service. At the time of the Board decision, the Board
discussed the fact that the veteran maintained that she had
sought treatment during service, but was told that no
physicians were available to treatment back problems. She
also contended that her duties in service included lifting 50
pound boxes, and that she had to ride in a truck over rough
terrain, which hurt her back. However, despite such
statements, the Board emphasized that extensive records of
treatment after service contained no medical opinion linking
her back disabilities to service or any incident therein.
The additional evidence received since the May 1997 Board
decision includes various private treatment records and
statements from the veteran, her former spouse, and
individuals who have known the veteran since February 1995
and October 2000.
The Board concludes that the evidence added to the record
since the May 1997 Board decision is not new and material
evidence to reopen the claim. More specifically, although
this evidence does reflect additional treatment for the
veteran's back since service, and the lay witness statements
variously note the veteran's complaints of back pain during
and after service, the medical evidence received since the
May 1997 Board decision does not establish a link between a
current back disability and service, or in the case of
arthritis and organic diseases of the nervous system, to a
period of one year after service. The lay evidence, to
include the statement from the veteran's former spouse, is
essentially duplicative of the previous arguments and
contentions offered by and on behalf of the appellant at the
time of the prior claim. As such it is not considered new
evidence.
The Board has considered the testimony of the veteran, her
former spouse, and other lay witnesses. As lay persons,
however, they do not have the medical expertise to offer a
medical opinion, nor does such testimony provide a sufficient
basis for reopening a previously disallowed claim. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Moray
v. Brown, 5 Vet. App. 211, 214 (1995) (holding that where
resolution of an issue turns on a medical matter, lay
evidence, even if considered "new," may not serve as a
predicate to reopen a claim).
The statements of the veteran and her witnesses are also
essentially cumulative of contentions that were made and
evidence that was considered at the time of the Board's
previous decision. Therefore, the Board concludes that the
additional evidence is not probative of the essential issue
in this case and thus is not new and material to reopen the
claim for service connection for a back disability. It is
also not material because it is not so significant that it
must be considered in order to fairly decide the merits of
the claim. 38 C.F.R. § 3.156 (2001).
ORDER
New and material evidence not having been submitted, the
reopening of the claim for service connection for a back
disorder is denied.
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs